When the U.S. Supreme Court announces its decision in the affirmative action lawsuit against Harvard Univerity in June, the court's newest member, Kentanji Brown Jackson, will not be weighing in.
That's because Jackson recused herself in the case — a decision that continues to spark controversy because other justices have not taken similar steps, despite their own potential conflicts of interest.
“It's possible that Justice Jackson could have brought a unique perspective to the discussion of the issues," said Michael Williams of the Coalition for a Diverse Harvard. "She might have had a particular understanding of how important it is to a university's mission to have a student body that's comprised of students with diverse backgrounds and experiences.”
Williams said the coalition's alums, students, faculty and staff are so concerned about the likelihood of the court to overturn affirmative action in the case that they're joining more than 100 Harvard students in Washington, D.C., on the steps of the Supreme Court building during today’s arguments.
Jackson is a graduate of Harvard and Harvard Law, and served as a six-term member of Harvard's Board of Overseers until last spring. Her daughter, Leila, is currently a first-year student at Harvard. While she agreed to recuse herself from the Harvard case in her Senate confirmation hearing last spring at the request of U.S. Sen. Ted Cruz (also a Harvard Law School alum) legal experts said the loss of her voice as the first Black woman in the nation's top court strikes a blow to racial equity.
A Harvard pedigree is hardly unusual in the nation's top court and it has not often been a reason for a recusal. Chief Justice John Roberts, another graduate of Harvard and Harvard Law, has not recused himself from the Harvard case, nor has Justice Elena Kagan, the former dean of Harvard Law School.
Boston University law professor Jonathan Feingold said he thinks Jackson took that step because she is doing everything she can to maintain the integrity of her role in the court.
Feingold contrasted Jackson's decision with Justice Clarence Thomas' refusal to recuse himself in the insurrection cases following former President Donald Trump's re-election defeat despite his wife's involvement in support of the uprising.
“Certainly there is context in which it raises a specter of a conflict,” Feingold said. “There is a plausible argument in both cases that there is a dynamic that would at least present the appearance of partiality on the part of one of the justices.”
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George Washington University law professor Jonathan Turley said Jackson's recusal was necessary because her term on the university's board directly overlapped with the time frame of the Harvard admissions period under scrutiny. He said Harvard's Board of Overseers doesn't have a “definitive say” over the admissions process at the college, but it does "purport to advise the university on admissions policies."
“To me, there was a very clear and necessary basis to recuse from the Harvard case," he said.
Turley, who has been publicly criticized as a Republican mouthpiece who defended Trump against impeachment, disagreed that Thomas should have stepped down from the insurrection cases. He argued that Thomas' wife, Ginni Thomas, is a well-known conservative activist in Washington, D.C., and as the spouse of a justice, she is allowed to have a professional existence and identity separate from her husband's. Her role in the case came into question when her emails to lawyer John Eastman became public. Eastman played a key role in efforts to pressure former Vice President Mike Pence to block the certification of Joe Biden’s presidential victory.
“The views that she was expressing in these emails and communications were consistent with what she has said publicly," Turley said. "One can certainly disagree with those views. But the idea that a justice has to recuse himself because of that context, I'm not convinced.”
Both Feingold and Turley agreed Jackson's recusal may not have major implications, considering the Supreme Court's conservative supermajority.
Williams said it's a loss of perspective that could be felt for generations if the court's conservative majority votes as many expect they will.
“One point that was often made in the commentary after Justice Jackson was nominated and ultimately confirmed after the confirmation process was that her perspective as a former public defender would be an important one to have on the Supreme Court,” Williams said.
Last spring, Jackson's recusal was widely seen as a blow to Harvard because it would leave only two justices — Elena Kagan and Sonia Sotomayor — likely to rule in favor of the university and allow a 6-3 conservative majority to possibly overturn current affirmative action policies.
But Jackson's opinions will not be entirely unknown.
The Supreme Court separated a similiar discrimination case to Harvard's that was filed against University of North Carolina. Jackson will be able to hear arguments and vote in the UNC case.
Clarification: This story was updated to note that George Washington University law professor Jonathan Turley has been criticized for his support of former President Donald Trump.
